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STATE OF SOUTH DAKOTA 

Department of State 
PIERRE 



Laws Relating To Trade-Marks 

An Act Entitled, An Act to Amend Sections 10411, 10412, 10413, 10414, 
10415, and Repealing Section 10417, of tlie South Dakota Revised 
Code of 1919, Relating to Trademarks. 

Jie It Enacted by the Legislature of the State of Soutli Dakota: 

Section 1. That section 10411 of the South Dakota Revised Code of 
1919 be and the same is hereby amended to read as follows: 

Section 10411. TRADEMARKS AND LABELS AUTHORIZED. It 
shall be lawful for a person, corporation, association, or union of working 
men to adopt for his, its or their protection a trademark, label, term, 
design, device or form of advertisement for the purpose of designing, 
making known or distinguishing any goods, wares, merchandise or other 
product of labor as having been made, manufactured, produced, prepared, 
packed, or put on sale by such person, corporation, association or union of 
working men, or by a member or members of such association, or union. 

Section 2. That section 10412 of the South Dakota Revised Code of 
1919 be and the same is hereby amended to read as follows: 

Section 10412. UNLAWFUL USE — PENALTY. Any person who shall 
use any such trademark, label, term, design, device or form of advertise- 
ment of any person, corporation, association or union of working men, 
after same shall have been lawfully filed as provided in this chapter, 
whether same shall be exactly like that of any such person, corporation or 
union or not, if likely to deceive, cr use with intent to deceive the public, 
shall be deemed guilty of a misdemeanor. 

Section 3. That section 10413 of the South Dakota Revised Code of 
1919 be and the same is hereby amended to read as follows: 

Section 10413. USE OF COUNTERFEIT — PENALTY. Every person 
who shall use any trademark, label, term, design, device or form of adver- 
tisement which is a counterfeit of that owned or used by any such person, 
corporation, association or union, after having been notified that the same 
is a counterfeit, shall be deemed guilty of a misdemeanor. 

Section 4. That section 10414 of the South Dakota Revised Code of 
1919 be and the same is hereby amended to read as follows: 

Section 10414. RECORD. Every person, corporation, association or 
union of working men adopting a trademark, label, term, design, device 
or form of advertisement of the kind specified in section 10411, shall file 
the same in the office of the secretary of state by leaving two copies there- 
of with such secretary, who shall file same as a record of his office and 
issue to the person, corporation, association or union filing same a certifi- 
cate of filing. The fee of the secretary of state for filing same and issuing 
such certificate shall be five ($5.00) dollars. Such trademark, label, term, 
design, device or form of advertisement shall not infringe upon that of any 
other person, corporation, association or union of working men and the 
applicant for filing same must be the lawful owner of same or lawfully 
authorized to use same. The application shall state the name and business 



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address of the applicant and a description of the business, and shall set 
forth the facts showing the right to use and file the trademark, label, term, 
design, device or form of advertisement. Such application shall be verified 
and any person or persons making any false or fraudulent representations 
to procure the filing of same shall be guilty of a misdemeanor. 

Section 5. That section 10415 of the South Dakota Revised Code of 
1919 be and the same is hereby amended to read as follows: 

Section 10415. INJUNCTION. Any such person, corporation, associa- 
tion or union, or authorized person on its behalf, may maintain an action 
in any court of competent jurisdiction to enjoin the unauthorized use of 
his, their or its trademark, label, term, design, device or form of adver- 
tisement so filed of record, or any unlawful counterfeit or imitation there- 
of, and in any such action the plaintiff shall be entitled to an injunction 
perpetually restraining such unauthorized or unlawful use, and to recover 
such damages as shall have resulted from such unauthorized or unlawful 
use, including the profits if any derived therefrom by the defendant; 
and the court shall order all counterfeit or imitation trademarks, labels, 
terms, designs, devices or forms of advertisement in the possession or 
under the control of the defendant to be delivered to an officer of the 
court to be destroyer. This act shall not be' construed to lessen, impair 
or abridge any rights or remedies that have heretofore existed or may exist 
in favor of anyone owning or rightfully claiming a trademark, label, term, 
design, device or form of advertisement. 

Section 6. That section 10417 of the South Dakota Revised Code of 
1919 is hereby repealed. 

Approved March 11, 1919. 

REVISED CODE OF 1919. 

Section 2 53. WHAT MAY BE OWNED. There may be ownership of 
all inanimate things which are capable of appropriation, or of manual 
delivery; of all domestic animals; of all obligations; of such products of 
labor or skill as the composition of an author, the good will of a business, 
trade-marks and signs, and of rights created or granted by statute. 

Section 490. TRADEMARKS. One who produces or deals in a par- 
ticular thing, or conducts a particular business, may appropriate to his 
exclusive use, as a trademark, any form, symbol or name which has not 
been so appropriated by another, to designate the origin or ownership 
thereof; but he cannot exclusively appropriate any designation, or part of 
a designation, which relates only to the name, quality or description of the 
thing or business, or the place where the thing is produced or the business 
is carried on. 

Section 948. TRADEMARK. One who sells or agrees to sell any 
article to which there is affixed or attached a trademark, thereby warrants 
that mark to be genuine and lawfully used. 

Section 4129. COUNTERFEITING TRADEMARK. Every person who 
willfully forges, counterfeits or procures to be forged or counterfeited any 
trademark usually affixed by any person to any goods of such person, with 
intent to pass off any goods to which such forged or counterfeit trademark 
is affixed, or intended to be affixed, as the goods of such person, is guilty 
of a misdemeanor. 

Section 4130. KEEPING DIES OF TRADEMARKS. Every person 
who, with intent to defraud, has in his possession any die, plate or brand, 
or any imitation of the trademark of any person, for the purpose of mak- 
ing any counterfeit or imitation of any description of such trademark, or 
of selling same when made, or affixing the same to any goods and selling 
or offering the same for sale or disposal as the original goods of any 
other person, and every person who so uses or sells the same, or who 
fraudulently uses the genuine trademark of another with intent to sell, or 



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offer for sale or disposal, any goods not the goods of the person to whom 
such trademark properly belongs, as genuine and original, is guilty of a 
misdemeanor. 

Section 4131. SELLING GOODS BEARING COUNTERFEIT TRADE- 
MARK. Every person who sells or keeps for sale any goods upon which 
any counterfeited trademark has been affixed, intended to represent such 
goods as the genuine goods of another, knowing the same to be counter- 
feited, is guilty of a misdemeanor. 

Section 4132. IMITATIONS, PARTIAL. Every person who, with 
intent to defraud, affixes or causes to be affixed to any goods or to any 
bottle, case, box or other package containing any goods, any label, stamp, 
brand, imprint, printed wrapper, ticket or mark, which designates such 
goods by any word or token which is wholly or in part the same to the 
eye, or to the ear, as the word or any of the words or tokens used by any 
other person as his trademark, and every person who knowingly sells, or 
keeps or offers for sale, any such bottle, case, box or other package, with 
any such label, stamp, brand, imprint, printed wrapper, ticket or mark 
affixed to or upon it, in case the person affixing or causing to be affixed 
such mark, or so selling, exposing or offering for sale such bottle, case, 
box or other package, was not the first to employ or use such words as his 
trademark, is guilty of a misdemeanor, and in addition to the punishment 
prescribed therefor is liable to the party aggrieved in the penal sum of 
one hundred dollars for each and every offense, to be recovered by him in 
a civil action. 

Section 4133. TRADEMARK DEFINED. The word "trademark," as 
used in the sections preceding, includes every description of word, letter, 
device, emblem, stamp, imprint, brand, printed ticket, label or wrapper, 
usually affixed by any mechanic, manufacturer, druggist, merchant or 
tradesman to denote any goods to be goods imported, manufactured, pro- 
duced, compounded or sold by him, other than any name, word or expres- 
sion generally denoting any goods to be of some particular class or 
description. 

Section 4134. GOODS DEFINED. The word "goods" as used in 
the sections preceding, includes every kind of goods, wares, merchandise, 
compound or preparation, which may be lawfully kept or offered for sale. 

Section 4135. AFFIXING DEFINED. The offense of affixing a false 
trademark to goods is equally complete within the meaning of Sections 
4129, 4131 and 4132, whether such mark is affixed to the goods them- 
selves, or to any box, bale, barrel, bottle, case, cask, wrapper or other 
package or vessel, or any cover or stopper thereof, in which such goods 
are put up. 

Section 4136. REFILLING AND SELLING BOTTLES. Whenever any 
person engaged in manufacturing, bottling or selling in bottle, soda, mineral 
water, cider or other non-alcoholic beverage, has filed and published in 
the manner authorized by law, a description of a name, mark or label 
usually stamped by him in the bottles containing such beverage, every 
other person who, without the written consent of such manufacturer or 
dealer, refills with any beverage, whether genuine or otherwise, with the 
intent to sell the same, any bottles stamped with such name, mark or 
label, and every person who sells, disposes of, purchases or traffics in such 
bottles, is liable to a penalty of fifty cents for each and every bottle so fill- 
ed, sold, bought, disposed of or trafficked in, for the first offense, and five 
dollars for each and every bottle so filled, bought, disposed of or trafficked 
in, for every subsequent offense. 

Section 4137. KEEPING BOTTLES WITH INTENT TO REFILL. 
Every person who keeps any bottles such as are designated in the preced- 
ing section, without the written consent of the manufacturer so to do, 

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with intent to refill or use or sell them in violation of such section, is 
liable to the penalty therein prescribed. 

Section 4138. COMPLAINT, SEARCH, PENALTY FOR KEEPING 
AND REFILLING BOTTLES. Whenever any manufacturer or dealer 
designated by the second preceding section, or his agent, shall make oath 
or affirmation before any magistrate that he has reason to believe and does 
believe, that any of his bottles stamped and registered as mentioned in 
said section are being unlawfully used by any person selling or manufac- 
turing mineral water or other non-alcoholic beverage, or that any junk 
dealer or vendor of bottles has any such bottles secreted in any place, such 
magistrate shall thereupon issue a search warrant to discover and obtain 
the same under the provisions of the law upon search warrants; and the 
magistrate may summarily bring or cause to be brought before him the 
person in whose possession the bottles are found, to examine into the cir- 
cumstances of his possession, and if such magistrate on summary exam- 
ination finds that such person has been guilty of a violation of the second 
preceding section, such magistrate shall proceed to impose the fine therein 
prescribed, and, if the same be not paid, to commit such person to prison 
for a term not exceeding fifteen days. 

Section 10416. MARKS AND BRANDS ON CONTAINERS. It shall 
be the duty of the register of deeds, on the application of any person 
domiciled within his county or any corporation organized under the laws 
of this state, engaged in the manufacture, bottling or selling of sodawater, 
mineralwater, aerated waters, unfermented cider, milk, cream or other 
nonintoxicating beverages in casks, kegs, barrels, jugs, bottles, boxes or 
other containers, to record in a book suitable for the purpose a description 
of the names, brands or trademarks used by such person or corporation 
for marking any container in which any such beverages are sold or kept 
for sale, which book shall be and remain a public record in his office. It 
shall thereupon be unlawful for any person, without the written consent of 
the owner, to fill any such container for the purpose of sale, or to sell, 
dispose of, buy or traffic in, or wantonly destroy the same, whether filled 
or not; and any person who shall violate the provisions of this section 
shall be deemed guilty of a misdemeanor and upon conviction thereof shall 
be punished by a fine of not less than five nor more than one hundred 
dollars. And the use by any person other than the rightful owner, with- 
out such owner's consent, of any such container, or the possession thereof 
by any junk dealer or dealer in any such container, the same being marked 
or stamped and registered as required in this section, shall be prima facie 
evidence that such use, sale or possession is unlawful, and a search warrant 
may be procured for the discovery and seizure thereof. 

Section 10418. DESTROYING — PENALTY. If any person shall un- 
lawfully and maliciously obliterate, injure or destroy the names, marks or 
brands affixed to any cask, keg, barrel, jug, bottle, box or other container 
used or intended to be used for the purpose specified in this chapter, and 
not his property, the person so offending shall be deemed guilty of a mis- 
demeanor and upon conviction thereof shall be punished by a fine not ex- 
ceeding one hundred dollars or by imprisonment in the county jail not 
exceeding sixty days, or by both such fine and imprisonment. 

Section 10419. FOREIGN CORPORATION. Any person residing out 
of the state, or any corporation organized under the laws of any other 
state or territory, engaged in the business mentioned in the third preceding 
section, shall be entitled to the privilege and protection of this chapter; 
provided; that he or it shall cause the record to be made as provided in 
such section, in the office of the register of deeds of the county or counties 
where he or it or his or its duly authorized agents have their place of 
business within this state. 






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